Social Media Gets a “Like” from SCOTUS: Comments Suggest Possible First Amendment Protection

When the President of the United States, every governor, every member of Congress, and—as Justice Kagan remarked—virtually every under-30 and 35 year-old in the country has a Twitter account, it’s time for social media to be recognized as a pervasive and protectable form of speech. On Monday, during oral arguments in Packingham v. North Carolina, the Supreme Court of the United States seemed to emphatically agree. The case concerns a North Carolina law that prohibits registered sex offenders from “accessing” any “commercial social networking websites” whose membership also includes minors. In particular, SCOTUS made several statements on the nature of social media:

Social media is universal and inescapable.
In response to an argument by North Carolina’s senior deputy attorney general Robert Montgomery that “plenty of people” don’t use social media, Justice Kagan retorted, “How many people under 30 do you think don’t use these sites to get all their information? Under 35?” Kagan also noted that all 50 governors and all 100 U.S. senators and members of the House of Representatives have Twitter feeds.

Social media functions the same as traditionally protected and vaulted forms of speech.
Justice Kennedy stated that social media sites had become—and in some ways surpassed—the public square as a place for discussion and debate. Social media are “greater than the communication you could have ever had, even in the paradigm of a public square,” he remarked. Justice Ginsburg called social media a “marketplace of ideas.” Justice Kagan reflected, “So this has become a crucially important channel of political communication….Whether it’s political community, whether it’s religious community—I mean, these sites have become embedded in our culture as ways to communicate and ways to exercise our constitutional rights.”

Social media covers a broad range of communication forms.
Justice Sotomayor took issue with the fact that North Carolina’s ban on use of social media could cover a huge range of sites. Websites these days, such as that of The New York Times which has some interactive features, are rarely “purely anything anymore.” What constitutes a “social networking website” is yet an unanswered question.

Social media has economic effects.
Justice Sotomayor identified economic consequences to restricting access to social media, citing LinkedIn as a way many people look for jobs these days. A 2016 survey found that 94% of job recruiters used social media to find candidates. Social media is increasingly taking on more functions, many of which have real economic implications.

While SCOTUS has yet to issue its decision, the fact that it spoke in language usually reserved for discussing First Amendment protection in analyzing the North Carolina law strongly indicates that it is finally giving social media recognition and protection as a form of speech and expression. What does this mean for users, purveyors, and hosts of social media?

Recognizing social media as a form of protected speech may have a significant impact on attempts to control, restrict, or edit the substance or distribution of certain posts. Although social media companies are not subject to First Amendment restrictions per se, companies’ attempts to regulate social media content may be received with hostility especially if users come to expect that their social media posts are always protected as free speech. As a useful comparison, a large percentage of Americans still believe that they are entitled to First Amendment protection in the private sector workplace. SCOTUS’ formal recognition of social media as protectable speech could focus negative attention on companies’ efforts to curate feeds.

The expectation of users that their social media posts are constitutionally protected could also run counter to the expectation of (some) users that social media platforms serve as safe, respectful and censored spaces. For example, Facebook’s attempts to control what posts make it into its “Trending Topics” module and efforts to combat fake news, or Twitter’s recent revision of its terms of services to more aggressively police “hate speech” could be vilified or welcome depending on the user’s point of view. Recognition by SCOTUS of social media as protectable speech presents yet another difficult line for social media companies to tread.